In a previous post, I promised more comments on the proposed revisions. My comments here will be about the controversial provisions on residential surveillance (监视居住) (RS) (also known as supervised residence). First, though, let me post here a translation of the amendments done by Johannis Bayer and Li Changshuan of the Danish Institute for Human Rights.

Now for the comments:

The current Criminal Procedure Law (CPL) provides for residential surveillance to be imposed on suspects while they are being investigated (Art. 50). While it doesn't define what residential surveillance actually entails, it is clear from the context and other documents that it involves something akin to house arrest: the subject's liberty is restricted but not absolutely, and the subject remains at home. This is clear from the following sources:

Art. 57 of the CPL contemplates that those without a fixed place of abode must stay at a designated place (presumably designated by the police); this implies that those with a fixed place of abode would remain there.

According to a 1984 Reply issued by the Supreme People's Court (最高人民法院关于依法监视居住期间可否折抵刑期问题的批复), time spent under residential surveillance, unlike time spent in any form of coercive detention, cannot be used to set off time imposed in a subsequent criminal sentence. The rationale is precisely that residential surveillance does not involve the type of restriction on liberty that accompanies detention. If the subject is coercively sent to a place of detention under the label of "residential surveillance", then this is not really residential surveillance; it is a form of detention proper, and the time served can set against the time imposed in a criminal sentence.

According to a 1991 Reply issued by the Supreme People's Court (最高人民法院行政审判庭关于对公安机关采取监视居住行为不服提起诉讼法院应否受理问题的电话答复), it is unlawful for public security organs, on the basis of a decision to impose residential surveillance, to shut the subject up in a station house, detention center, or other place. The original question posed to the SPC makes clear that "other place" includes "guest houses", hotels, work units, etc. (The SPC did not, however, offer a judicial remedy for this illegality; it suggested that the victim bring the matter to the attention of higher-level public security authorities.)

As the above makes clear, the police have for years had a practice of locking people up in places other than their residence, but calling it "residential surveillance". Let's call it "non-residential residential surveillance" (NRRS). Although NRRS is unquestionably unlawful, it is apparently too useful to be dispensed with. One advantage is perhaps that, unlike detention or arrest, RS carries no notification requirement. To be sure, the notification requirements for detention (Art. 64) and arrest (Art. 71) are weak because the police can evade them entirely by a unilateral and unreviewable determination that to notify family of the detention or arrest would impede the investigation. But perhaps the police still feel it's better to have no restraints at all than to have even this weak one. In any case, the lack of a notification requirement makes sense under the proper understanding of RS: the suspect is still at home and able to communicate, so the family is bound to know. The lack of a notification requirement would make no sense if NRRS were a legitimate practice.

All right: fast forward to August 2011, when the proposed amendments came out. The provisions on RS have attracted a great deal of criticism on the grounds that they legitimize NRRS. I was recently at a meeting with Chinese officials and academics where the revisions were discussed. They were a bit miffed at criticism of these revisions and felt that some important improvements had been overlooked. To some extent I think they had a point; certainly my own understanding was aided by the discussion we had.

Here’s one part of the key language from new Art. 73: 对于涉嫌危害国家 安全犯罪、恐怖活动犯罪、重大贿赂犯罪，在住处执行可能有碍侦查的，经上一级人民检察院或者公安机关批准，也可以在指定的居所执行。This is translated in the Bayer/Li translation as: “Where, in cases of a crime suspected to threaten national security, crimes of terrorist activities and major crimes of bribery, it may, upon approval by the next higher people’s prosecutor’s office or public security authority, be enforced at a designated place of residence[.]”

I would modify this slightly to make the term “suspicion” apply to all three crimes: “Where there is suspicion of the crime of endangering national security, the crime of terrorist activities, or the crime of receiving bribes in serious circumstances, then …” I don’t see any reason for confining “suspicion” to just the first crime, and it’s not grammatically necessary to do so.

More controversial are the provisions re notice. Here’s the Chinese: “指定居所监视居住的，除无法通知或者涉嫌危害国家安全犯罪、恐怖活动犯罪，通知可能有碍侦查的情形以外，应当把监视居住的原因和执行的处所，在执行监视居住后二十四小时以内，通知被监视居住人的家属。”

This is rendered in the Bayer/Li translation as: “Where residential surveillance is enforced at a designated domicile, the family members of the person under surveillance shall be informed of the reason for and the place under residential surveillance within 24 hours upon enforcement, save where a notice cannot be furnished or where crimes threatening national security or crimes of terrorist activities are suspected and a notice may impede the investigation.” In other words, notice must be given within 24 hours except where either of the following two conditions applies: (1) notice cannot be furnished, and (I say “and” because this is a list, but note that they are alternatives) (2) (a) a crime of threatening national security or terrorism is suspected, AND (b) giving notice might impede the investigation.”

As noted above, under current law, there is no notification requirement for residential surveillance. At the same time, current law (as well as applicable SPC interpretations) contemplates that residential surveillance will really be at the residence. Now a requirement of notice has been added, but note that it applies only to the new, permitted type of “residential surveillance” not at your residence (i.e., NRRS). Moreover, it is not completely discretionary, since the exception for impeding the investigation applies only to two types of cases. In other words, yes, the revisions legalize the current practice of non-residential residential surveillance, but only in three types of cases, and they also add a restriction that notice must be given (subject to a non-open-ended exception).

Note also that the new notice requirement is essentially duplicated for detention (new Article 84) and arrest (new Article 92). Here it’s unambiguously good from a civil liberties or restraint-on-power perspective. Under current law, police can decide not to notify family of a suspect's detention or arrest if they unilaterally decide in any case that it would impede the investigation. Under the revisions, police can decide not to notify only if they (again unilaterally and unreviewably) decide that it would impede the investigation and it’s one of two types of case: national security or terrorism.

In short, then, the revisions tighten up the existing notice requirement for detention and arrest, and add in the same requirement for NRRS.

Of course, in the end these are all just words, and since police action is essentially unreviewable by external authority if it takes place in the claimed context of a criminal investigation (see the above-mentioned 1991 Reply issued by the Supreme People's Court), the police are under no real obligation to apply the words in good faith. But the words are, on the whole, more restrictive of police powers than before, and that's worth noting.

Finally, I want to note one mistake in this part of the translation: Item 32 of the amendment amends Art. 57, changing it to Art. 75. Paragraph (b) as translated says that someone subject to residential surveillance may not "meet or correspond with certain designated persons without the prior approval by the enforcement authority." I don't see any support in the original Chinese for the idea that the prohibition applies only to "certain designated persons." The original Chinese says that those subject to RS may not meet or correspond with anyone without approval: "未经执行机关批准不得会见他人或者通信".

This is more than a trivial point, because as translated the burden is on the police to come up with a list of prohibited people; as actually written, however, the default rule is that meetings or communications with anyone are barred; it's up to the subject to seek permission (which he might not get) to escape what could become a form of solitary confinement. I don't believe this aspect of the proposed revisions has been widely commented on.